The 1947 Taft Hartley amendments to the Wagner Act (National Labor Relations Act) are generally despised, but there was one good thing and that was the inclusion of the "good faith" standard in 8(d) of the Act.

I've previously mentioned the duty only attaches to mandatory 1/
subjects (wages, hours, and other terms and conditions of employment) and not permissive subjects that either party can refuse to bargain over (such as supervisors' pay - or in this case minor league pay for players not on the 40-man roster).

So what is "good faith?" 2/
It's the obligation of both parties to actively participate in the deliberations so as to indicate a present intention to find a basis for agreement. It includes both an open mindedness and a desire to reach agreement.

These considerations are part of a 3/
totality of the circumstances evaluation to determine if one party (particularly employers) are not meeting their minimum obligations under the law.

Because it's a totality of the circumstances (fact based analysis) a single event or fact is not usually sufficient to 4/
create bad faith. One statement or one isolated action would not violate the overall duty.

Sometimes sweeping proposals that grant management discretion to make changes at-will over mandatory subjects can be indicia of bad faith. In these negotiations, the proposal 5/
from yesterday that would grant the Commissioner unfettered discretion to make rule changes, if after a very short period of bargaining the Union did not agree, could fall into that category. In light of the other things management has done in these negotiations, that proposal 6/
would seem ill timed at the very least.

One party's unwillingness to consider proposals within the scope of bargaining is another potential indication of bad faith. In the instant case management has refused to discuss expanding Super-Two status or revenue sharing. 7/
Dilatory tactics, such as an unwillingness to meet and confer at reasonable times and intervals can be indicia of bad faith. The 43-day Christmas vacation might constitute a willful avoidance of meetings. The premature request for FMCS assistance and 8/
statement that they would not make another proposal could be considered delaying or evasive tactics and indicia of bad faith.

On @keithlaw's podcast last week I mentioned surface bargaining, which is when an employer meets at length and confers, but is simply going through 9/
the motions of bargaining.

Inflexibility and unwillingness to seek alternative acceptable options could be seen as bad faith, however sticking by a "fair and firm" offer aka Boulwarism, is not in and of itself bad faith.

Unrealistic or harsh proposals can also be indicia. 10/
In the instant situation, management's initial CBT proposal that went backwards considerably AND increased the penalties definitely wouldn't be indicia of good faith. It's what I called an "unserious" proposal at the time. That's a term the NRLB uses in evaluating bad faith 11/

In the instant situation, management can look to its own flexibility in agreeing to a bonus pool concept (even though the tentative agreement on the subject is not complete) as indicia of good faith. I would have a hard time identifying anything else that 12/
management has proposed that actually provides a benefit solely to the employees. The DH is a mutual interest as many have pointed out repeatedly.

There are a lot of other factors that the Board would consider, which management has not done here. It has not gone directly to 13/
employees with its proposal. It has not unilaterally changed working conditions prior to the conclusion of bargaining. It has not declared impasse improperly and imposed terms and conditions of its last, best offer. Although that has been hinted at recently. I hasn't sent 14/
people to the table who don't have the authority to reach agreement - although there was an allegation from one source that the Union had done that because the secret all-powerful Scott Boras was actually the Union's controlling hand.*

*I digress.

Without knowing the 15/
the specifics of the proposals and the back and forth on the subjects - and whether management continues to refuse to bargain over certain things, but insists on its way in others, it's impossible to really make a determination whether management is negotiating in bad faith. 16/
I haven't asserted it, because it's a complex analysis with many factors, many of which we, the public, know nothing about.

I mentioned earlier that I think it was a smart decision for the Union to stay at the table tomorrow. If they walk away it undermines an argument they 17/
may make later in a ULP charge.

All told, I'm not saying anyone is wrong who has asserted MLB is acting in bad faith. I'm just saying we don't know enough of the details to meet the legal standard required by the NLRB to issue a ULP complaint. /end

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More from @EugeneFreedman

Feb 28
I'm pleased that there have been so many more truth tellers recently. I just wish they had come sooner. And, I hope that partners like ESPN will allow their writers to bring the honesty (and that they are willing to do so- I know some won't be willing).

In this column Andy 1/
makes a lot of important points.

The first is that Manfred and the owners want to cancel games. The reason, which is unstated, is that they know the money is back ended. It's in the pennant races and the playoffs. They realized in 2020 that a credible season is short. It's 2/ What it looks like you can’...
not 162 long games with all of that money paid to the talent. It's 60 games or maybe a little longer, but with less money going out, yet the same amount of national TV money coming in. Only in a monopoly is making less worth more.

Andy then properly blames the owners and 3/ The owners initiated this s...
Read 5 tweets
Feb 27
No both sides arguments from Ken Rosenthal this morning. He doesn't pull any punches in his column about the status of negotatiations placing this crisis of lost games on Manfred's lap. 1/ The players’ union made mov...
He goes on to make some of the points I've been making regarding the owners treating this as a zero sum game and a cavalier disregard about missing games - he stops short of the reason for that, which I've said is a misguided belief that they can break the union. 2/ Meyer and the union strongl...
Ken goes on to make a point that @joe_sheehan has been making for a while now: the current Union offer on the table is a big win for management. They should take it. 3/ The league from the start h...
Read 6 tweets
Feb 27
As I've said throughout, I don't want to make a prediction about the timing of an agreement. It happens when the parties are ready to make it happen.
But, what has become increasingly clear is what Evan identifies in this article, "The owners were never, ever going to hand over
hundreds of millions of dollars to the players unless they had to."

Normally a lockout is immediate. Employees don't get paid and aren't allowed to work. They aren't locked out in a period when they are on a months long unpaid vacation. Opening day is when the lockout really
begins. As I've explained before, the leverage on opening day is in the owners' favor. The players get paid over the six months of the regular season. But, owners receive their money back-end-loaded. Most of the national TV revenue is in the playoffs and much of the rest is
Read 7 tweets
Feb 26
So, we are still in the place where MLB wants its two big asks - additional round of playoffs and a reintroduction of the CBT, but they want a CBT that's completely unchanged, despite increasing revenues, and the Union has mostly given up on expanding arbitration eligibility. 1/
Yet, it's management who is angry.

George Cohen, the great labor lawyer, who was Chairman of the FMCS in the Obama Administration, (who had negotiated for NBA players in 70s and District Court case for MLBPA in 94-95) once told me that the owners are all rich men who are 2/
never told "no" so they expect to get everything they want. The players are all the most competitive people on the planet and they are rewarded for winning.

So, in the current situation, the owners can't figure out how to take a big win on the playoffs and still give 3/
Read 4 tweets
Feb 24
There's a lot here to unpack and correct.

It would be mean to start with the homophone, so instead, I'll just say, don't take legal advice from this guy.

The standard is not "sufficient good faith efforts." That's a whole load of made up nonsense. I wrote about impasse two 1/
years ago. I mistagged the wrong Ken Rosenthal, but the rest is still good. It's a long thread explaining what the NLRB looks at when determining an impasse. 2/
But, if the parties actually reach impasse, then one of the new tools available to management is to unilaterally implement its last, best offer. But, would that change anything? Nope.

We still would nave NO BASEBALL. You want to know why? It's because the players would 3/
Read 8 tweets
Feb 24
Ken wrote an interesting piece today that I want to spend a little time discussing. Yesterday, I made a general warning not to spend too much time reading articles about how to resolve the difference between the parties. I'll give you some reasons why in this thread: 1/
We only know the basics of every proposal. If you were to look at the MLB-MLBPA CBA, it has long articles, particularly the ones on complex subjects like the luxury tax/competitive balance tax, free agency, arbitration eligibility, service time, and a host of other subjects. 2/
Knowing what's been reported in a proposal sheds no light on the language underlying the articles of the CBA that is sometimes more important than the financial differences themselves.

2) We don't know the relative value that each party places on different provisions. 3/
Read 16 tweets

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